viidle Publisher Service Agreement
This viidle Publisher Service Agreement (“Agreement”) is made by and agreed to between Ad Japon Inc. (“Ad Japon”), and you (“Publisher”, or “You”).
1.1 Ad Japon has created, developed and installed a system by which Ad Japon has developed a suite of services which enables “Advertisers” (defined in the Section 2) and Publishers to launch and manage video advertisement mediation on the Internet via the viidle.net Platform (the services are called “viidle”, “viidle Publisher Services” or “viidle Services” as defined in the Section 2).
1.3 Your use of the viidle Publisher Services shall be conditioned upon your acceptance of this Agreement (including Guidelines) without modification. If you do not accept this Agreement, you may not use the viidle Publisher services.
Capitalized terms not otherwise defined herein shall have the meanings set forth below:
2.1 “Account Configuration” means the selections made by Publisher in creating and configuring its viidle Publisher Account (defined in the Section 34.1).
2.2 “Action(s)” means any action(s) for which Advertisements provide rewards or incentives to Users, including, but not limited to, completion of specified actions within third-party applications or on specified URLs, activation of third-party services, participation in surveys, interaction with video content, transmitting messaging, etc.
2.3 “Ad Unit” means any of the advertising units offered by Ad Japon, including, but not limited to, Direct Play Video and Full Screen Interstitials, through which Advertisements are displayed in Applications.
2.4 “Advertisement(s)” means an advertisement, offer, promotion, and/or the like presented or delivered by Ad Japon through the viidle including, without limitation, the advertising content, graphics, format, audio, video, sequence, etc.
2.5 “Advertiser” means a third-party advertiser which displays Advertisements to Users via Ad Units via the viidle Publisher Services.
2.6 “Advertising Fee” means amounts actually paid by Advertisers and received and recognized by Ad Japon based on the viidle Services, less deductions for Network and Account Expenditures.
2.7 “viidle Services Data” means data generated via User interaction with or otherwise in connection with the viidle Services.
2.8 “Application(s)” means the Publisher
’s application(s) selected by Publisher in connection with the viidle Publisher Services, including any successor titles, updates and title changes.
2.9 “Data” means, collectively, the viidle Services Data. “Data” expressly excludes Usage Data, Derivative Data and Reports.
2.10 “Derivative Data” means data and analyses synthesized by the viidle, using the Data.
2.11 “Direct Play Video,” “DPV,” or “Auto Play Video” means the video Ad Unit which is played either automatically or upon User’s initiation.
2.12 “Exclusive” and “Exclusivity” means, with respect to the applicable Ad Unit, that Publisher shall engage and maintain Ad Japon as the exclusive provider of the said Ad Unit for the Application(s).
2.13 “Interstitial,” “Full Screen Interstitial,” or “FSI” means the Ad Unit which is automatically displayed to the User upon occurrence of a Publisher-defined event within the Application.
2.14 “Network and Account Expenditures” means direct and indirect expenses attributable to account acquisition and management, including, but not limited to, network-related expenses, adjustments and charge-backs, taxes, refunds, uncollected amounts, agency and partner fees and expenses, marketing credits, referral fees, and payment processing fees.
2.15 “Report(s)” means a compilation of any requested information, which may include Data, Usage Data or Derivative Data, provided to Publisher in connection with the viidle Services.
2.16 “Revenue Share” means a percentage of Advertising Fee payable to Publisher.
2.17 “SDK” or “Software Development Kit” means the software (source and/or object code), applications, sample code, tools, libraries, APIs, data, files, plug-ins, documentation and other materials, including updates or upgrades, made available through viidle SDK download website as provided by Ad Japon from time to time.
2.18 “viidle Platform” means the viidle Publisher Services, together with the Publisher-facing tools and interface on the viidle websites, which collectively allow the Publisher to use and configure the viidle Publisher Services.
2.19 “viidle,” “viidle Publisher Services,” or “viidle Services” means one or more of the services present or display Advertisements to Users within the Applications through Ad Units.
2.20 “Usage Data” means all data relating to Publisher’s use of the viidle Platform, whether collected by Ad Japon directly or provided by Publisher to Ad Japon.
2.21 “User” means end users who view, use or otherwise engage with an Application.
3. viidle Publisher Services
Publisher may engage one or more of the viidle Publisher Services defined through Publisher’s Account Configuration.
4. Publisher Obligation
4.1 Ad Japon will provide Publisher with the ability to create a password-protected account (“Publisher Account”) in order to use the viidle Publisher Services. Access to each Publisher Account is provided only to that Publisher, and Publisher is strictly prohibited from providing access to the Publisher Account to any third party. Publisher shall be at all times responsible for maintaining the strict confidentiality of the Publisher’s password and shall be responsible for any access to or use of Publisher Account, including any fees, costs, or expenses incurred or accumulated as a result of such use, by Publisher or by any other person or entity using the Publisher’s password, whether or not such access or use has been authorized by or on behalf of Publisher, and whether or not such person or entity is Publisher’s employee or agent. Publisher agrees to (a) notify Ad Japon immediately of any unauthorized use of the Publisher’s password or Publisher Account or any other breach of security of Publisher Account; and (b) ensure that Publisher (or the Publisher employee or agent, as applicable) exits from the Publisher Account at the end of each session. Ad Japon shall not be responsible or liable for, and Publisher hereby waives any claim against Ad Japon in connection with, any loss or damage arising from Publisher’s failure to comply with this Section 4.1.
4.2.1 Publisher shall use data and software provided by Ad Japon (including Usage Data) in connection with the viidle Services for the sole purpose of displaying Advertisements in the Application(s), and Publisher will display, or allow for the display of, all Advertisements in connection with the viidle Services and any applicable amendment.
4.2.2 Publisher shall timely comply with Ad Japon’s requirements regarding onboarding and enablement of proper display of Advertisements, including, but not limited to requirements relating to placement, delivery, code implementation, and adherence to technical specifications. Any exceptions shall be pre-approved in writing by Ad Japon.
4.2.3 Publisher shall not modify, edit, alter, obscure or truncate the content, text, appearance or order of any Advertisement(s), or aggregate one or more Advertisements with any other offers (e.g., by creating a mediated or aggregate offerwall which combines Advertisements provided by Ad Japon with advertisements from other sources).
4.2.4 Publisher shall not, directly or indirectly, nor shall Publisher authorize or encourage any third party to, (i) generate fraudulent impressions or fraudulent clicks; (ii) take similar or other fraudulent actions, including, but not limited to, manipulation of device IDs, misrepresentation of geo-location or other offer eligibility information, etc.; or (iii) take any other actions that interfere with, disrupt or interact in an unauthorized manner with the viidle Publisher Services (or any servers and/or networks connected thereto), including, but not limited to, through repeated manual clicks, the use of robots, scrapers or other automated query tools and/or computer generated requests. Ad Japon may terminate or suspend the Publisher Account at any time for any reason, including, but not limited to, because of suspected fraudulent activity. Publisher acknowledges and agrees that Ad Japon may, in its sole discretion, review impressions, click-through or other actions, and Publisher shall not be entitled to receive any Revenue Share attributable to Problem Events, as defined in the Section 7.2.3 below.
4.2.5 Except as otherwise provided in an applicable amendment, Publisher agrees that Ad Japon shall be the Exclusive provider of all Ad Units for the Application(s) and that Publisher shall not implement or engage any competing third-party Ad Units within the Application(s) concurrently with the viidle Services.
4.2.6 Publisher represents, warrants, and covenants that (i) its Application(s) are not and will not during the effective term of this Agreement be directed to Users under 13 years of age; (ii) Publisher does not as of the date Publisher create a Publisher Account, and will not during the effective term of this Agreement, collect, use, or disclose personal information from any Users known to Publisher to be a child under 13; (iii) Publisher will notify Ad Japon in writing immediately if either (i) or (ii) becomes or is discovered to be inaccurate.
4.2.7 Publisher, where applicable, shall indemnify, defend Ad Japon and its agents, officers, directors and employees (collectively, “Indemnitees”) from and against any claims, suits or proceedings brought by a third party (“Claims”) against any Indemnitee to the extent arising from: (a) any Publisher Application that contains content prohibited by Guidelines, as updated from time to time, (b) any activity prohibited by the Section 4.3 directly or indirectly engaged in or authorized by Publisher, (c) a claim that Publisher infringes any patents, trademarks, service marks, trade names, design rights, copyrights, database rights, trade secrets, rights in know-how and other intellectual property rights, of whatever nature and wherever arising, whether registered or unregistered and including applications for the grant of any such rights (collectively, “Intellectual Property Rights”) of any third party, or (d) breach by the Publisher of any provisions of this Agreement.
4.2.8 In the event of a Claim against any Indemnitee, the Indemnitee will notify Publisher and shall have the right to seek sufficient indemnity directly from Publisher.
4.3.1 Publisher shall not, and shall not authorize or otherwise permit any third party to: (i) use any viidle Publisher Services or Service Content (defined below in this Section) for any purpose except for Publisher’s own internal use; (ii) market, sell, lease, rent, sublicense, distribute, syndicate or otherwise make available to any third party any of the viidle Publisher Services or any component thereof; (iii) use the viidle Publisher Services or any component thereof for timesharing or service bureau purposes, or otherwise for the benefit of any third party (iv) store, copy, modify, distribute, or resell any of the Advertisements or any other content provided via the viidle Publisher Services (collectively, “Service Content”) or compile or collect any Service Content as part of a database or other work; (v) use any automated tool (e.g., robots, spiders) to access or use the viidle Platform or to store, copy, modify, distribute, or resell any Service Content; (vi) circumvent or disable any digital rights management, usage rules, or other security features of the viidle Platform; (vii) use the viidle Platform in a manner that overburdens, or that threatens its integrity, performance, or availability or those of any viidle Publisher Services; (viii) remove, alter, or obscure any proprietary notices (including copyright and trademark notices) on any portion of the viidle Publisher Services or any Service Content; or (ix) circumvent, bypass, or cheat the functionality of the viidle Publisher Services through any of the following methods, including, but not limited to, by auto-spawning of pages or hijacking of an User’s device, automatic Advertisement refreshes (unless instigated by an User’s page refresh), or any other method designed to fraudulently, deceptively, or artificially inflate the number of impressions, clicks or other payable actions.
4.3.3 Publisher shall comply with the guidelines and any applicable requirements imposed by its platform licensors (i.e., Apple, for iOS Applications, and Google, for Android Applications).
4.3.4 Publisher will use the viidle SDK only as provided by Ad Japon, without modification.
4.3.5 Publisher agrees that it shall not use the viidle Publisher Services to collect “personal information” as defined under laws in any applicable jurisdictions, including, but not limited to, the U.S. Children’s Online Privacy Protection Act, 15 U.S.C. §§ 6501–6506 (“COPPA”), through a child-directed Application (whether or not such Application is labeled or described as a “Kids” or “Children” Application), or from a User who Publisher has actual knowledge is under 13 years old. Publisher further agrees that it shall not transmit any “personal information” from children under 13 to Ad Japon.
5.1 Publisher hereby grants to Ad Japon a non-exclusive, perpetual, irrevocable, royalty-free, fully paid up, worldwide, sub-licensable, transferable right and license to reproduce, display, distribute, copy, modify, amend, create derivative works from, and otherwise use the Data for any purposes in connection with or otherwise related to the provision and operation by Ad Japon of the viidle Publisher Services (including, but not limited to the provision of viidle Publisher Services to third parties) subject to the Section 5.2 below. With respect to any Usage Data, Derivative Data and Reports that Ad Japon may provide to Publisher, Ad Japon hereby grants Publisher a non-exclusive, royalty-free, fully paid up, revocable, non-transferable, non-sublicenseable right and license to reproduce, display, distribute, copy, modify, amend, create derivative works from, and otherwise use the Usage Data, Derivative Data and the Reports for Publisher’s internal business purposes only and in accordance with any Ad Japon’s attribution requirements provided to Publisher in connection therewith.
6. Reservation of Rights
Ad Japon reserves the right, in its sole discretion, to reject or remove any Application and to restrict, suspend, or terminate Publisher’s access to the viidle Publisher Services at any time, for any or no reason, with or without prior notice, and without liability.
7.1.1 All payments will be made in U.S. dollars (USD) or Japanese Yen (JPY) as elected by Publisher in Account Configuration, unless the parties agree in writing to use of an alternate currency.
7.1.2 Each party shall be solely responsible for any costs it incurs in connection with its obligations hereunder. The payee shall be solely responsible for the payment of, and shall pay when due, all applicable taxes, including, as applicable, any value added tax, federal and state taxes, sales, use, excise or transfer taxes and other taxes associated with payments to the payee under this Section 6. When acting as payee responsible for payment of taxes, each party shall indemnify the other party for all costs, losses, liabilities and expenses, including penalties, arising from any failure to make timely payments, subject to the provisions of this Agreement.
7.1.3 Both parties agree that Ad Japon expressly reserves the right to set off amounts owed to Publisher against any other amounts owed by Publisher relating to any viidle Publisher Services.
7.1.4 The payer shall be responsible for all transmission fees that may be assessed by its banking institution for payments the payer makes hereunder.
7.2.1 Except as otherwise agreed in any applicable amendments, Ad Japon shall pay Publisher its due and payable then-current standard Revenue Share associated with Advertising Fee derived from Publisher’s use of the viidle Services, less Network and Account Expenditures, if any, and/or other sums due hereunder within forty-five (45) days following the end of each calendar month; provided that amounts payable of less than a hundred dollars USD ($300) will be held until the amounts due equal or exceed $300, and also subject to the provision of complete and accurate Publisher’s information relating to remittance of payment from Publisher to F@N.
7.2.2 Payments in all cases shall be based on Ad Japon’s measurements, which shall be the system of record for calculating sums payable hereunder. Payments are rounded down to the nearest penny/yen. All billing times referenced in this Agreement are on Japan Standard Time (JST). All transaction times referenced in this Agreement are on Coordinated Universal Time (UTC).
7.2.3 Ad Japon shall not be obligated to pay for any fraudulent actions generated by any person, bot, automated program or other device or mechanism in connection with any Advertisements provided by Ad Japon, as reasonably determined to be fraudulent by Ad Japon. Ad Japon shall not be obligated to make a payment to Publisher of amounts, and Publisher agrees that Ad Japon may, in its sole discretion, either deduct or require Publisher to remit to Ad Japon in full within five (5) business days any amount paid out from amounts otherwise due to Publisher, to the extent based on: (i) any issuance of virtual goods or virtual currency through any fraudulent or invalid means; (ii) any issuance of virtual goods or currency in connection with any amounts subsequently refunded, credited or subject to a credit card charge-back; or (iii) any action that is fraudulent, invalid, suspicious, noncompliant with Guidelines, or otherwise questionable (the events described in (i) through (iii) collectively, “Problem Events”). Publisher represents, warrants, and covenants that it has made and will continue to make industry-standard and commercially reasonable efforts to prevent the occurrence of Problem Events, and shall notify Ad Japon upon the occurrence of any suspected or confirmed Problem Events. Ad Japon reserves the right, in its reasonable judgment, to delay or suspend payment of Revenue Share based on Problem Events. Publisher will reasonably cooperate with Ad Japon in its investigation of Problem Events and to prevent misuse of the viidle Publisher Services. If Publisher suspects any such misuse it shall promptly notify Ad Japon to the effect and shall act promptly to reduce or mitigate such misuse.
7.2.4 In the event of an error in payments made to Publisher from Ad Japon which shall be determined by Ad Japon to be an error, whether as a result of inaccurate information provided by a third party or otherwise, then Ad Japon will in its sole discretion either (i) require reimbursement in full of any such error amount, and Publisher shall remit the required amount to Ad Japon promptly but in no more than five (5) business days from the request by Ad Japon, or (ii) allocate any deficient amounts or deduct any overpayment in the subsequent calendar month payment due to Publisher.
8.1 Subject to the licenses expressly granted in this Agreement, Publisher and its licensors will own and retain all right, title, and interest in and to (a) the Application(s) and (b) any Data provided by Publisher, including Data collected through the viidle SDK. Publisher shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Data.
8.2 Ad Japon and its licensors will exclusively own and retain all right, title, and interest in and to: (a) the viidle Platform, including all viidle Publisher Services and the SDK, including all information and software (and improvements and updates) related thereto, and all Usage Data and Derivative Data (including compilations thereof but excluding the Data) collected through the viidle Publisher Services, the Advertisements or the viidle Platform; (b) any materials, information, inventions, data or software (and improvements and updates related thereto) which were owned by Ad Japon or its affiliates prior to the acceptance date of this Agreement or which are subsequently created by Ad Japon (either solely or jointly with Publisher) under this Agreement, excluding Data; and (c) the Reports (except with respect to Data contained therein).
9.1 “Confidential Information” of Ad Japon includes: (a) Advertisements, prior to publication hereunder; (b) information relating to pricing, pricing structures, revenue, suppliers, customers, and Ad Japon’s financial model and methodologies; (c) data (including any Usage Data, Derivative Data and compilations thereof), information or software relating to or collected through the viidle Publisher Services (except for the Data); and (d) the Reports (except, however, for “Analytics Service Data” contained therein).
9.2 Confidential Information of either party means, in addition to the foregoing, any information designated in writing, or identified orally at the time of disclosure, by the disclosing party as “confidential” or “proprietary.” Each party shall keep confidential, and neither party shall use for any purpose, or disclose to any third party (other than a party and its related companies’ respective officers, directors, employees, contractors, and/or advisors with a need to know and an independent obligation of confidentiality no less protective than the provisions hereof), any Confidential Information of the other party except to fulfill its obligations or exercise its rights under this Agreement, except as otherwise permitted by this Agreement. The obligation of this Section shall survive the expiration or termination of this Agreement. The foregoing obligations shall not apply to the information which: (a) has been independently developed by the receiving party without access to the other party’s Confidential Information and without any breach of any obligation of this Agreement; (b) has become publicly known through no breach of this Section 8 by the receiving party; (c) has been rightfully received from a third party which is authorized to make such disclosure; (d) has been approved for release in writing by the disclosing party; or (e) is required to be disclosed by a competent legal or governmental authority, provided that the receiving party gives the disclosing party prompt notice of such requirement prior to disclosure and assists in obtaining an order to protect the information from public disclosure. Confidential Information is the sole and exclusive property of the disclosing party or its licensors, suppliers, or clients. Except as set forth herein, upon expiration or termination of this Agreement for any reasons, or upon the reasonable request of either party, the receiving party shall promptly return or destroy all Confidential Information of the other party and any copies of the Confidential Information of the other party to its owner and certify in writing that it has so returned or destroyed all such Confidential Information.
Ad Japon may suspend or terminate this Agreement (including those amendment) or any portion thereof, at any time for any reason or for no reason without notice to Publisher. Publisher may terminate this Agreement at any time for any reason or for no reason upon at least thirty (30) days’ prior written notice to Ad Japon. Upon termination of this Agreement, each party shall remain liable to the other for any amounts due and owing to the other party as of the date of termination, and such obligation to pay shall survive the termination of this Agreement. Upon any termination of this Agreement, Publisher shall cease distribution of any Application that incorporates the SDK and certify thereto in writing to Ad Japon within five (5) business days of such termination.
11. Compliance with Laws
Publisher hereby grants to Ad Japon a royalty-free, fully paid up, sub-licensable, transferable, nonexclusive, worldwide, irrevocable and perpetual license to reproduce, display, distribute, and otherwise use, in connection with the viidle Publisher Services, the trademarks, service marks, logos or other indicia of origin associated with Publisher and its Application(s), for the purpose of promoting Publisher and its Application(s) in Ad Japon’s advertising, marketing, promotions and promotional materials.
13. Representations, Warranties and Covenants
In addition to the representations, warranties and covenants made under other Sections of this Agreement, Publisher further represents, warrants and covenants that: (a) Publisher is the owner or legally authorized to act on behalf of the owner of each Application for which Publisher engages any viidle Publisher Service; (b) Publisher has maintained and will maintain all necessary rights, power, licenses and authority to enter into this Agreement and to perform the acts required of Publisher hereunder and to permit Ad Japon to perform its obligations contemplated under this Agreement; (c) the Applications, including software, documentation and other information related thereto, are in compliance with Guidelines and do not infringe the Intellectual Property Rights, privacy rights or other rights of any person or entity; (d) Publisher has complied and will continue to comply with all Laws in all applicable jurisdictions (including, but not limited to, any relevant data protection or privacy laws); (e) Publisher will obtain and comply with any and all applicable consents, authorizations and clearances from Users to allow Ad Japon to collect, store, and use User’s data; and (f) Publisher will at all times comply with this Agreement (including, but not limited to, the amendment thereof), all Guidelines provided by Ad Japon in connection with any one or more of the viidle Publisher Services, or any amendments to the foregoing.
14.1 Publisher shall indemnify, defend and hold harmless Ad Japon and its affiliates, and their respective officers, directors, employees, agents, and contractors on demand from and against any and all third party claims, allegations, losses, costs, liabilities, damages, penalties, settlements, judgments, fees and expenses (including, without limitation, reasonable attorneys’ fees and expenses) (collectively “Losses”) arising out of or related to any actual or alleged: (a) breach by Publisher, its affiliates or their respective officers, directors, employees, agents or contractors (collectively, “Publisher Representatives”) of any provisions of this Agreement, including, but not limited to, Publisher’s representations, warranties and/or covenants hereunder; (b) claims that any applications (including the Application(s)), products, services or software distributed, made available or developed by Publisher, infringe any third party’s Intellectual Property Rights, privacy, rights of publicity or any other rights; and (c) violation or failure by Publisher or any Publisher Representative to comply with all Laws and regulations in connection with Publisher’s Applications, use of the viidle Platform (including viidle Publisher Services) or otherwise, whether or not described herein.
14.2 Publisher reserves the right, at Publisher’s expense, to provide Ad Japon with prompt written notice of its intention to assume the exclusive defense and control of any matter for which Publisher is required to indemnify Ad Japon (absent which Ad Japon shall control such defense at Publisher’s cost), and Ad Japon agrees to reasonably cooperate with Publisher’s defense of such claims at Publisher’s expense. Publisher shall not enter into any settlement for which indemnity is sought unless: (a) such settlement includes an unconditional release of Ad Japon and its affiliates from all liability on all claims; and (b) Ad Japon gives its prior written approval, which shall not be unreasonably withheld.
15.1 AD JAPON, ON BEHALF OF ITSELF AND ITS SUBSIDIARIES, DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN CONNECTION WITH THE VIIDLE PLATFORM, INCLUDING THE VIIDLE PUBLISHER SERVICES, THE CONTENT, FUNCTIONALITY OR PERFORMANCE OF ANY OF THE VIIDLE PUBLISHER SERVICES, THE SDK, ANY ADVERTISEMENT OR ANY APPLICATION, AND ANY OTHER AD JAPON’S PRODUCTS OR SERVICES TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE VIIDLE PLATFORM AND ALL VIIDLE PUBLISHER SERVICES AND SDK ARE PROVIDED “AS-IS” AND WITHOUT WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF PERFORMANCE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHER, AD JAPON DOES NOT MAKE, AND HAS NOT MADE, ANY REPRESENTATION OR WARRANTY THAT THE VIIDLE PLATFORM OR THE VIIDLE PUBLISHER SERVICES OR SDK ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, OR VIRUS-FREE OR THAT THE OPERATION OF THE VIIDLE PUBLISHER SERVICES OR SDK WILL BE UNINTERRUPTED. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO PUBLISHER IN SUCH STATES. AD JAPON DOES NOT WARRANT OR GUARANTEE: (A) THE RESULTS OF USE OF THE VIIDLE PUBLISHER SERVICES INCLUDING THAT PUBLISHER WILL EARN ANY PARTICULAR AMOUNTS (OR ANY AMOUNTS AT ALL); (B) THE RESULTS OF ANY CONSULTING, DEVELOPMENT, OR OTHER SERVICES PROVIDED BY AD JAPON; OR (C) THE ACCURACY OR COMPLETENESS OF THE REPORTS.
15.2 Without limiting the generality of the foregoing, Publisher acknowledges that some of the viidle Publisher Services are based, in whole or in part, on an auction model and some of the main factors which determine the Revenue Share are not within Ad Japon’s control.
15.3 Publisher acknowledges and agrees that Ad Japon is not affiliated with or responsible for any third-party products or services displayed, distributed or otherwise promoted in connection with the viidle Publisher Services, including, without limitation, the Advertisements. Ad Japon neither represents nor endorses the quality, accuracy, reliability, integrity or legality of any third party (including, not limited to, Advertiser) products or services, nor the truth or accuracy of the description of any Advertisements, links, content, advice, opinions, offers, proposals, statements, data or other information from any third party products or services that are displayed, distributed or otherwise used in connection with the viidle Publisher Services.
16. Limitation of Liabilities
IN NO EVENT SHALL AD JAPON, ITS PARENT, SUBSIDIARIES, AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR CONTRACTORS (COLLECTIVELY, THE “AD JAPON PARTIES”), BE LIABLE TO PUBLISHER OR ANY OTHER PERSON OR ENTITY WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, FOR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST INCOME, REVENUE OR PROFITS, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS ARISING OUT OF THIS AGREEMENT, EVEN IF AD JAPON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. THE AD JAPON PARTIES’ AGGREGATE LIABILITY IN RESPECT OF ALL OTHER LOSSES ARISING OUT OF THIS AGREEMENT WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, SHALL NOT EXCEED FIVE THOUSAND DOLLARS ($5,000) USD. THE LIMITATION OF LIABILITY HEREIN IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECTS A FAIR ALLOCATION OF RISK. PUBLISHER AGREES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY, DISCLAIMERS AND EXCLUSIVE REMEDIES SPECIFIED HEREIN ARE FAIR AND REASONABLE AND SHALL SURVIVE EVEN IF THE VIIDLE PUBLISHER SERVICES, THIS AGREEMENT OR AMENDMENT, OR ANY ELEMENT THEREOF IS FOUND TO HAVE FAILED IN ITS OR THEIR ESSENTIAL PURPOSE. PUBLISHER ACKNOWLEDGES AND AGREES THAT ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE RAISED WITHIN 6 MONTHS FROM THE DATE OF ACCRUAL THEREOF OR SUCH CLAIM SHALL BE FOREVER WAIVED. IF PUBLISHER IS DISSATISFIED WITH ANY ASPECT OF THE VIIDLE PUBLISHER SERVICES OR THIS AGREEMENT AT ANY TIME, PUBLISHER’S SOLE AND EXCLUSIVE REMEDY IS TO CEASE USING THE VIIDLE PUBLISHER SERVICES.
17. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, U.S. unless specifically stipulated in this Agreement, without giving effect to principles of conflicts of law.
All disputes, controversies or differences which may arise between the parties hereto, out of or in relation to or in connection with this Agreement shall be finally settled by arbitration in the New York City, the State of New York, U.S., in accordance with the Commercial Arbitration Rules of The Japan Commercial Arbitration Association.
All comments, feedback or materials submitted by Publisher to Ad Japon including feedback, testimonials, images, reviews, questions, comments, suggestions or ideas (collectively, “Feedback”) shall be received and treated by Ad Japon on a non-confidential and unrestricted basis. Ad Japon will be free to use, display, perform, distribute, copy, adapt, and promote, in any medium now known or later developed, without compensation to Publisher, the Feedback along with all ideas, concepts, know-how, techniques or methodologies contained in such Feedback, for any purpose whatsoever, including, without limitation, developing, marketing and selling products and services incorporating such Feedback. Publisher agrees that, in submitting Feedback, Publisher shall not violate any right of any third party, including any confidentiality, copyright, trademark, privacy or other personal or Intellectual Property Rights, and shall not cause injury to any person or entity. Publisher further agrees that no Feedback Publisher submits shall be or contain libelous or otherwise unlawful, threatening, abusive or obscene material, or contain viruses, commercial solicitations, or any form of “spam”.
Notices to Publisher shall be sent by email to the address provided for Publisher in the Account Configuration. Notices shall be effective upon receipt; provided that notices sent by email shall be effective as of the email date absent receipt by the sender of a bounce back or error message.
21.1 This Agreement sets forth the entire agreement between Ad Japon and Publisher, and supersedes any and all prior agreements (whether written or oral) with respect to the subject matter set forth herein.
21.2 This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned without Ad Japon’s prior written consent, and any attempt to do so in breach of the foregoing shall be null and void. This Agreement shall inure to the benefit of and be binding upon each party’s respective successors and assigns.
21.3 Ad Japon and Publisher shall be independent contractors, and neither Ad Japon nor Publisher shall be an agent, representative or partner of the other.
21.4 Ad Japon may amend or update this Agreement (including Guidlines) at any time in its sole discretion by posting any such amended or updated terms of Agreement/Guidelines to Ad Japon’s website or otherwise notifying Publisher. Publisher’s continued use of the viidle Publisher Services following such posting or notice of amended and/or updated Agreement/Guidelines shall constitute Publisher’s acceptance of the amended and/or updated Agreement/Guidelines.
21.5 Ad Japon reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the viidle Publisher Services without notice. Ad Japon shall not be liable to Publisher or to any third party for any modification, suspension, or discontinuance of all or any portion of the viidle Publisher Services.
21.6 The waiver of any breach or default of this Agreement shall not constitute a waiver of any subsequent breach or default, and shall not act to amend or negate the rights of the waiving party.
21.7 If any provision of this Agreement is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision shall be severed and replaced with a new provision which most closely reflects the original intention of the parties, and the remaining provisions shall remain in full force and effect.
21.8 In case of any conflicts or inconsistencies among this Agreement, any amendment thereto, and/or any Guidelines, the terms of the applicable amendment shall govern and control, followed in precedence by this Agreement, and followed then by Guidelines.
21.9 Any preprinted terms on any other transactional or other document issued in connection herewith (including, without limitation, purchase orders, RFPs, bills of lading, etc.) are per se null and void and of no force or effect.
21.10 The following Sections of this Agreement shall survive expiration or termination of this Agreement: Sections 4.3, 5, 6, 7 (with respect to any payment obligations existing as of the effective date of termination or expiration), and Sections 8 through 21.
21.11 Neither party shall be responsible for failure to perform hereunder due to a cause beyond its reasonable control, including, without limitation, terrorism, fire, civil disturbance, war, rebellion, earthquake, flood and similar occurrences, provided that performance shall resume as soon as commercially practicable after the cause no longer prevents performance.
21.12 The use of headings herein is for convenience only and is not intended as nor shall it be used as an aid to interpretation.
21.13 This Agreement shall commence upon Publisher’s indication that Publisher has accepted this Agreement by providing the required information and ‘clicking through’ the acceptance button on the viidle and shall be in effect through twelve (12) months from the effective date as written below (“Initial Term”). After the initial Term, this Agreement shall automatically renew for additional twelve (12) month terms (“Renewal Term”) unless either party provides the other with thirty (30) days’ notice of termination prior to the end of the Initial or Renewal Term.
21.14 Each party represents and warrants at all times that: (i) it is duly organized and validly existing and in good standing under the laws of the place of its incorporation; (ii) it has full corporate power and authority to enter into this Agreement and to carry out the provisions hereof; (iii) it is duly authorized to execute and deliver this Agreement and duly authorized to perform its obligations and exercise its rights hereunder; (iv) the execution, delivery and performance of this Agreement does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it.
Ad Japon Inc.1-1-8 Shibuya Shibuyaku Tokyo, Japan
Effective on February 8, 2017